Ministry of Justice?

I’ve been reflecting on the subject of yesterday’s post, the creation of the Ministry of Justice. The more I think about it, the more concerned I become.

When, suddenly and without regard to its long and distinguished pedigree, the government announced the proposed abolition of the office of Lord Chancellor, and immediately replaced the Lord Chancellor’s Department with the Department of Constitutional Affairs, the justification put forward was the need to secure a proper separation of powers between the executive and the judiciary. With the subsequent creation of Her Majesty’s Courts Service, bringing the judges and magistrates under one roof for the first time, responsibility for the judiciary passed from the Lord Chancellor to the Lord Chief Justice.

Much as I will regret the disappearance of the office of Lord Chancellor (if it ever happens), the objective, separation of powers, I see as entirely laudable. It is the job of parliament to enact law, and the duty of the judiciary then to uphold and apply that law, at the same time treating each case on its individual merits. It is not for the executive to micromanage the way in which judges and magistrates carry out that duty.

It seems to me, however, that the new Ministry of Justice represents a retrograde step so far as the separation of powers is concerned. The Secretary of State for Justice is charged with responsibility provision and administration of the court system, the prisons and the probation service; the head of the judiciary, responsible for the delivery of justice in individual cases, remains the Lord Chief Justice. Well and good, but the Secretary of State takes up his duties with a prison service under severe strain and a probation service which is seriously underfunded. Both of these organisations face difficulties in providing the courts with the service which they need effectively to carry out their responsibilities. And the response? On the very first day of its existence, the head of the Ministry of Justice, Lord Falconer (the executive arm), announces his intention to restrict the use of custody, suspended or immediate, by the magistrates (the judicial arm). Thus, the very person who argued so persuasively for strengthening the separation of powers now proposes on his first day in office to blur or diminish that separation. The reason, moreover, is not that he considers that we are acting perversely or in bad faith, but rather that one of his departments is in a financial mess and so he wants to take some of the pressure off it.

All of this is justified on the basis that community penalties address reoffending more productively than custody, as if the only purpose of sentencing was to reduce reoffending. I don’t want to get onto the subject of the various other purposes of sentencing today, but I think I may well post something on that subject in the not too distant future.

For today, suffice it to say that I fear that the creation of a Ministry of Justice in its present form, may yet herald far greater interference by the executive in the delivery of justice. I’d particularly welcome comments on this from anyone reading this post.